In general there are two main types of people in the work force, the employed and the self-employed. This article will discuss these two types of worker in brief and the duties owed to them by an employer with focus on potential exposure to asbestos.
An employed worker is one who has a contract of employment with his employer and who’s tax and national insurance contribution payments are deducted at source by the employer and paid to the government directly under the terms of the Pay As You Earn (“PAYE”) Scheme.
An employer owes an absolute duty of care to an employee to ensure the employee is provided with all relevant health and safety training, all relevant health and safety equipment and to ensure that the work place is safe for the employee.
If an employer breaches its duty of care to an employee it will be negligent at law and answerable to the employee in a civil compensation claim.
A self-employed individual is generally one who offers a service of labour to a main contractor on a sub-contract basis.
A typical example of a self-employed individual is one where a tradesman such as an electrician offers his services to a business such as a supermarket in return for a fee, i.e. the electrician contracts to repair a light fitting for say £50. In this example the electrician is not employed by the supermarket per se, merely contracted to perform a service in return for a reward.
The main contractor supermarket in this example would not be responsible for ensuring the electricians tax duties are met, the electrician would need to file an annual tax return directly to HMRC and this would need to include details of the earnings from the supermarket sub-contract.
Equally the supermarket in this example would not necessarily be responsible for the electricians health and safety. The supermarket as a main contracting entity would expect the electrician to (1) hold the relevant qualifications to conduct the task in a safe manner (2) to have safe and serviceable equipment such as ladders and power tools (3) hold the relevant health and safety qualifications such as a CIS card (4) hold his/her own certificate of insurance in case an accident occurs on site. In short the supermarket would be entrusting the electrician to be able to conduct the works in a safe manner and case law shows that in general a Court would not hold the supermarket responsible for any injury involving the electrician whilst working in its store.
But what if the main contracting entity takes an involved role in the day-to-day works of the self-employed sub-contractor? This situation potentially causes a “grey area” at law in terms of responsibility of the main contractor over the sub-contractor.
Case law on the point
Unfortunately there have been many occasions where a self-employed individual has been involved in an accident at work and suffered an injury.
In many cases the self-employed individual has been unable to obtain any compensation from the main contracting entity due to his/her employment status. There have however been many occasions where the Courts have deemed the main contracting entity to have owed a duty of care to the self-employed individual, the leading case on the point is that of Lane v Shire Roofing Co (Oxford) Limited (1995).
In this case, Mr Lane was a self-employed roofing contractor contracted by Shire Roofing to fit roofs on its behalf on a self-employed sub-contracting basis. Mr Lane unfortunately had an accident resulting in injuries and issued a legal claim against Shire Roofing for compensation. Shire Roofing centred its defence on the basis that Mr Lane was a self-employed individual and that no health and safety duties were owed to him.
At Court it was decided that Shire Roofing did owe health and safety duties to Mr Lane as it had an active interest in his working role, how his work was to be conducted, in the management of him as a self-employed individual, and because it had an influence on his potential earnings which Mr Lane could not change amongst other matters. The Court then held Shire Roofing to be liable for Mr Lane’s injuries and awarded compensation to Mr Lane.
The judgement in the case of Lane also laid down a set of criteria which must be met in the future for other self-employed individuals who wish to claim compensation from main contracting entities in respect of work place accident injuries, those criteria are as follows:
- Who controlled the work that the self-employed individual carried out?
- Who laid down what work was to be done?
- Who specified the way in which the work was to be done?
- Who specified the means by which the work was to be done and the time when it was to be done?
- Who hired and fired the team by which the work was done?
- Who provided the materials, plant, machinery and tools used?
- Whose business was it?
- Whose business was the self-employed individual carrying out?
- Who took the financial risks of the business?
- Did the C self-employed individual have any opportunity of profiting from sound management in the performance of the project?
- Did the self-employed individual’s earnings depend on whether the project went well or badly, or made or lost money?
- Who was responsible for the overall safety of the men doing the work, to include the self-employed individual?
The Court did not specify how many of these criteria need to be met, but obviously the more that are satisfied then the greater the chance a self-employed individual has of proving that the employing entity owed a duty to him/her.
Can the Lane v Shire Roofing judgement be applied to asbestos claims?
Peter Olszewski, an asbestos specialist associate solicitor at Boyes Turner has successfully dealt with many cases involving self-employed individuals who worked with asbestos on behalf of a main contracting entity as a sub-contractor.
One example is the case of Mr S who was employed as a self-employed gas fitter for a national gas company.
Mr S was required to sign a document setting out the terms of engagement with the gas company, this document regulated his working hours, the tasks he could be required to undertake and pay details amongst other things. Mr S was also required to request annual leave in advance like employees had to, Mr S was required to wear company a uniform like employees had to, Mr S was given a sign written company van like employees were, Mr S was subjected to the same disciplinary procedures as employees were, there was no end date/end of contract for Mr S in his terms of engagement and Mr S was even invited to all company social functions such as Christmas parties like employees were.
This case clearly satisfied the criteria from the case of Lane and as such the gas company agreed to compensate Mr S for his asbestos related injuries.
It is also worth noting that as well as case law precedence such as that in the case of Lane, there are Statutory regulations that provide duties of care from a main contracting entity over a self-employed individual.
An example of a Statutory Act protecting self-employed individuals is seen in the Construction (General Provisions) Regulations 1961 which holds main contracting entities to be liable to protect employees and sub-contractors from the harmful affects of any dust or fume likely to be injurious to persons in the work place. There are also many other Statutes affording protection to self-employed individuals.